Capping off an extremely important day of discussions with senior White House officials and Capitol Hill offices about ending the unprecedented Republican obstruction that is contributing to our severe federal judicial vacancy crisis, several state and national advocates had the opportunity to meet with President Obama about the urgency of addressing this crisis.
PFAW President Michael Keegan and I joined several representatives from among the 150 advocates from 27 states who participated in the Summit, in a meeting in the West Wing of the White House, where we heard the President reaffirm his commitment to press for the confirmation of judicial nominees who are ready for a vote in the full Senate or being considered by the Senate Judiciary Committee – and his commitment to continue vetting and making nominations through the balance of this year in an effort to fill the remainder of the vacancies.
We celebrated the Administration’s extraordinary success so far in diversifying the federal bench, while agreeing that there was even more to be done. Advocates talked about the millions of Americans who are denied meaningful access to the courts because there simply are not enough judges on the bench. And we heard the President affirm the importance of pressing obstructionists in the Senate to end the unprecedented dysfunction that is impeding individual Americans’ access to justice.
For me this was a sobering day as we focused on the urgency of filling our federal bench with quality judges who will keep faith with the Constitution -- and inspiring to see the allies we have in states around the country, on Capitol Hill, and in the White House to get the job done.
In a summit at the White House yesterday with 150 grassroots and legal leaders from 27 states, Attorney General Eric Holder and White House Counsel Kathy Ruemmler stressed the importance of maintaining fair and effective federal courts, and criticized Senate Republicans for creating gridlock that has left one in ten federal court seats vacant.
Holder stressed President Obama’s effort to nominated qualified and diverse nominees to the federal courts. 46 percent of the president’s confirmed judicial nominees have been women and 37 percent have been people of color, more than under any other president in history. “Our people are diverse, they are qualified and they will serve the American people well in their time on the bench,” he said.
While President Obama has nominated dozens of highly qualified, diverse Americans to the federal bench, his nominees have met with unprecedented obstruction from Senate Republicans.
“Republican obstruction and these delays on the floor aren’t happenstance. They’re strategic and they’re having a devastating impact,” Ruemmler told attendees.
Ruemmler said that the conservative movement “understands the important role courts play in all of the issues we care deeply about as a country.”
Today’s summit was a sign that progressives are beginning to care deeply about the courts as well.
“This matters. This really matters,” Holder said. “This is a key legacy for any president. It’s one of the ways that a president’s success can be measured.”
Today, a few representatives from People For the American Way joined 150 Americans from 27 states at a White House summit to discuss the state of vacancies in the federal courts.
We’ll write more about the summit in later posts, but first, a summary of the problem. PFAW’s graphic designer, Nicole, put together this infographic showing how unprecedented obstruction of judicial nominees has created an unprecedented vacancy crisis in the federal courts, and slowed down President Obama’s effort to bring qualified, diverse judges to the federal bench:
Just how much has Citizens United altered the electoral landscape? While the overall amount of outside money in politics has risen dramatically with each passing election cycle, the Citizens United decision eliminated restrictions on corporate and special-interest spending to influence or elections. The result shows that the new rules have stacked the deck in favor of Republicans.
This chart from the Center for Responsive Politics shows how, while spending by outside groups has been on the rise since the 90’s, it was not until 2010 Supreme Court decision that conservatives saw a sudden, major advantage in outside-expenditure spending on their behalf:
Total Liberal vs. Conservative Outside Spending, Excluding Party Committees
As Ian Milllhiser at Think Progress notes, the much of the 2012 spending on Republican candidates went to intra-party contests during the primaries, though it will likely continue through the general election. But the overall trend is clear: As a result of the Citizens United, Republicans will continue to enjoy outsized spending on their behalf by corporations.
Last night, actor and PFAW board member Alec Baldwin appeared on The Last Word with Lawrence O’Donnell, where they discussed, as the host put it, “the number one reason to vote for president”: the United States Supreme Court.
Baldwin noted that the Supreme Court affects the daily lives of all Americans, and that the prospect of Mitt Romney making lifetimes appointments to that institution is nothing less than “scary,” especially with Robert Bork as his top judicial advisor.
“To most people, the court is an idea, they don’t realize the impact it has on our daily lives,” Baldwin said. But People For the American Way has been “drilling home the relevance of the court…this is the most abjectly politicized Supreme Court I’ve ever seen in my life,” he continued. Decisions like Bush v. Gore and Citizens United, he said, are “changing the nature of this country.”
Baldwin is helping to spread the word about RomneyCourt.com, where you can read “Borking America,” PFAW’s extensive report on Mitt Romney’s top judicial advisor – whose views are so extreme his own nomination was rejected by a bipartisan coalition more than 20 years ago.
Mitt Romney is eager these days to change the subject from what the public sees as his party's "war on women." He seeks to close the huge gender gap that has opened up as women flee the party of Rick Santorum, Newt Gingrich and Rush Limbaugh in search of something a little less patriarchal and misogynistic.
But Romney's problems with America's women may be just beginning. He can distance himself from the theocratic musings of other Republicans and the macho bullying of Fox News talking heads, but he cannot run away from his own selection of former Judge Robert Bork, in August of last year, to become his principal advisor on the Supreme Court and the Constitution.
Bork hopes to wipe out not only the constitutional right to privacy, especially the right to contraception and to abortion, but decades of Equal Protection decisions handed down by what he calls a feminized Supreme Court deploying "sterile feminist logic" to guarantee equal treatment and inclusion of women. Bork is no casual chauvinist but rather a sworn enemy of feminism, a political force that he considers "totalitarian" and in which, he has concluded, "the extremists are the movement."
Romney may never have to elaborate his bizarrely muted reaction to Rush Limbaugh calling Sandra Fluke a "slut" and a "prostitute" ("it's not the language I would have used"), but he will definitely have to answer whether he agrees with his hand-picked constitutional advisor that feminism is "totalitarian"; that the Supreme Court, with two women Justices, had become "feminized" at the time of U.S. v. Virginia (1996) and produced a "feminization of the military"; and that gender-based discrimination by government should no longer trigger heightened scrutiny under the Equal Protection Clause.
Romney has already said that, "The key thing the president is going to do... it's going to be appointing Supreme Court and Justices throughout the judicial system." He has also said that he wishes Robert Bork "were already on the Court."
So look what Robert Bork thinks Romney's Supreme Court Justices should do about the rights of women.
Wiping Out Contraceptive, Abortion and Privacy Rights
Romney certainly hoped to leave behind the surprising controversy in the Republican primaries over access to contraception, but Robert Bork's extremist views on the subject guarantee that it stays hot. Bork rejects the line of decisions, beginning with Griswold v. Connecticut (1965), affirming the right of Americans to privacy in their procreative and reproductive choices. He denounces the Supreme Court's protection of both married couples' and individuals' right to contraception in Griswold and Eisenstaedt v. Baird (1972), declaring that such a right to privacy in matters of procreation was created "out of thin air." He calls the Ninth Amendment -- which states that the "enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people" -- an "inkblot" without meaning. For him, the right of people to decide about birth control has nothing to do with Due Process liberty or other rights "retained by the people" -- it is the illegitimate expression of "radical individualism" on the Supreme Court.
Bork detests Roe v. Wade (1973), a decision he says has "no constitutional foundation" and is based on "no constitutional reasoning." He would overturn it and empower states to prosecute women and doctors who violate criminal abortion laws. Bork promises:
Attempts to overturn Roe will continue as long as the Court adheres to it. And, just so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned. The Court's integrity requires that.
In other words, the Court's "integrity" would require a President Romney to impose an anti-Roe v. Wade litmus test on all nominations to the Court.
Ending Heightened Scrutiny of Government Sex Discrimination under Equal Protection
Bork is the leading voice in America assailing the Supreme Court for using "heightened" Equal Protection scrutiny to examine government sex discrimination under the Fourteenth Amendment. While women and men all over America cheered the Supreme Court's 7-1 decision in United States v. Virginia (1996), the decision that forced the Virginia Military Institute to stop discriminating and to admit its first women cadets, Bork attacked it for producing the "feminization of the military," which for him is a standard and cutting insult --"feminization" is always akin to degradation and dilution of standards. He writes: "Radical feminism, an increasingly powerful force across the full range of American institutions, overrode the Constitution in United States v. Virginia." Of course, in his view, this decision was no aberration: "VMI is only one example of a feminized Court transforming the Constitution," he wrote. Naturally, a "feminized Court" creates a "feminized military."
Bork argues that, outside of standard "rational basis" review, "the equal protection clause should be restricted to race and ethnicity because to go further would plunge the courts into making law without guidance from anything the ratifiers understood themselves to be doing." This rejection of gender as a protected form of classification ignores the fact that that the Fourteenth Amendment gives "equal protection" to all "persons." But, if Bork and his acolytes have their way, decades of Supreme Court decisions striking down gender-discriminatory laws under the Equal Protection Clause will be thrown into doubt as the Court comes to examine sex discrimination under the "rational basis" test, the most relaxed kind of scrutiny. Instead of asking whether government sex discrimination "substantially" advances an "important" government interest, the Court will ask simply whether it is "conceivably related" to some "rational purpose." Remarkably, Mitt Romney's key constitutional advisor wants to turn back the clock on Equal Protection jurisprudence by watering down the standards for reviewing sex-discriminatory laws.
Judge Bork Means Business: the Case of the Sterilized Women Employees
If you don't think Bork means all this, go back and look at his bleak record as a Judge on the U.S. Court of Appeals for the D.C. Circuit. Take just one Bork opinion that became a crucial point of discussion in the hearings over his failed 1987 Supreme Court nomination. In a 1984 case called Oil, Chemical and Atomic Workers International Union v. American Cyanamid Co., Bork found that the Occupational Safety and Health Act did not protect women at work in a manufacturing plant from a company policy that forced them to be sterilized -- or else lose their jobs -- because of high levels of lead in the air. The Secretary of Labor had decided that the Act's requirement that employers must provide workers "employment and a place of employment which are free from recognized hazards" meant that American Cynamid had to "fix the workplace" through industrial clean-up rather than "fix the employees" by sterilizing or removing all women workers of child-bearing age. But Bork strongly disagreed. He wrote an opinion for his colleagues apparently endorsing the view that other clean-up measures were not necessary or possible and that the sterilization policy was, in any event, a "realistic and clearly lawful" way to prevent harm to the women's fetuses. Because the company's "fetus protection policy" took place by virtue of sterilization in a hospital -- outside of the physical workplace -- the plain terms of the Act simply did not apply, according to Bork. Thus, as Public Citizen put it, "an employer may require its female workers to be sterilized in order to reduce employer liability for harm to the potential children."
Decisions like this are part of Bork's dark Social Darwinist view of America in which big corporations are always right and the law should rarely ever be interpreted to protect the rights of employees, especially women, in the workplace.
No matter how vigorously Mitt Romney shakes his Etch-a-Sketch, Americans already have an indelible picture of what a Romney-run presidency and Bork-run judiciary would look like and what it would mean for women. With Robert Bork calling the shots on the courts, a vote for Mitt Romney is plainly a vote against women's rights, women's equality and women's freedom.
Jamin Raskin is the author of the new PFAW Report, "Borking America: What Robert Bork Will Mean for the Supreme Court and American Justice."
This morning, the Supreme Court heard the oral arguments of Arizona v. United States, a case that will examine key provisions of Arizona’s infamous and draconian immigration law, SB 1070. If implemented, the law, colloquially known as the ‘show me your papers bill,’ would lead to the unjust targeting of Arizonans through racial profiling and increased jail sentencing.
Because of SB 1070’s blatant assault on civil liberties, much of the nation was shocked by its passage. The United States challenged it in court, arguing that the state was unconstitutionally encroaching on the federal government’s responsibility for immigration law. Four sections of the bill were blocked by U.S. District Judge Susan Bolton of Phoenix on July 28, 2010. The 9th Circuit Court of Appeals in San Francisco upheld Bolton’s ruling, and after Arizona appealed that decision, the case arrived at the Supreme Court, which has chosen to address yet another politically polarizing issue in this critical election year. Although the threat to the basic rights of people – both citizens and immigrants – is the subject of significant concern, the legal issue before the Supreme Court today addresses whether Arizona’s effort to make life so miserable for immigrants that they leave the state is preempted by federal law.
Below is an analysis of the legislation that People For the American Way published when participating in a statewide boycott of Arizona following the passage of the legislation nearly two years ago.
Question: How does the Arizona law, S.B. 1070, expand racial profiling? Isn't it focused only on migrant workers?
Answer: Under current law, state-local police are authorized to enforce federal immigration laws only in limited circumstances. Even so, law enforcement in Arizona and across the country already is challenged by substantial evidence of wrongful arrests, racial profiling, and discrimination. The new law would dramatically expand the problem. Specifically, the new law:
• Increases the scope of those enforcing immigration laws from a few police departments, or units within departments, to every single law enforcement officer in the entire state.
• Expands the population at risk of being stopped, arrested, and detained from a limited number – those targeted by bona fide immigration enforcement operations, or those already in police custody – to everyone who comes into contact with a law enforcement officer who has a "reasonable suspicion" someone may be undocumented.
• Virtually guarantees that Latinos and other minorities will be asked to provide proof of legal residency, and be subject to arrest and detention if they cannot do so, at far higher rates than non-minorities. Research on racial profiling shows that, not only do minority drivers experience more traffic stops than non-minority drivers, once stopped, minorities are subject to higher rates of searches, arrests, and formal charges than similarly-situated non-minority drivers.
• Provides powerful incentives for wrongful arrests, racial profiling, and other abuse by creating a private right of action against any agency that fails to uphold the new law's provisions, while at the same time indemnifying police officers from litigation brought by those who are wrongfully detained or racially profiled.
Demonstrations in support of the U.S. Justice Department took place this morning, and PFAW staff were able to attend in solidarity.
End Note: Another controversial aspect of SB 1070 is the role that ALEC, the American Legislative Exchange Council, played in adopting the bill as model legislation and pushing it in states across the country. For an analysis of the ALEC connection and SB 1070, please read our report on ALEC in Arizona released in November 2011, “ALEC IN ARIZONA: The Voice of Corporate Special Interests in the Halls of Arizona's Legislature” and the Center for Media and Democracy’s blog post on the issue.
Recent polling indicates the vast majority of Americans believe that corporations and special interests have too much sway in our elections – a whopping 85 % of voters said that corporations have too much influence over the political system, and 93% said that average citizens have too little. Across all parties, a full 62% specifically oppose Citizens United, the deeply flawed 2010 Supreme Court Decision that opened the floodgates to massive corporate and special interest spending in our elections.
This deep disapproval is manifest in the growing grassroots movement taking hold across the country fighting for a constitutional amendment to overturn that decision. While there’s a long way to go, the people represented in these polls are making their voice heard, and our elected officials are taking action.
The 89 members of Congress who have endorsed one of the 13 federal resolutions to overturn Citizens United introduced thus far during the 112th Congress are acting on this sentiment. These proposed amendments are diverse, and are reflective of the robust and serious debate Americans are having across the country on what constitutional approach would best solve the problem. In addition, as significant is the groundswell of support at the local and state level that far transcends this total. To name just a few, the City Councils of New York City, NY, Oakland, CA, Los Angeles, CA, Albany, NY, Missoula, MT, and Boulder, CO have all adopted their own resolutions, as have the legislatures of states like Hawaii, New Mexico and Vermont (and in Maryland, where the state Constitution does not permit the passage of non-binding resolutions, a majority of legislators in both houses have signed a letter calling for a constitutional amendment). When given the chance to vote directly, the citizens of 64 towns across the state of Vermont have passed ballot measures supporting a constitutional amendment.
So far, 91 million Americans are represented by public officials who have declared their support for a constitutional amendment to overturn Citizens United. 24 Senators, representing 75 million constituents, have sponsored or cosponsored a version of an amendment. Across the Capitol, 65 members of the House of Representatives, representing an additional 16 million people.
Progress is being made, but there’s still more work to do to fill these maps with dark shades of yellow and green. But this is a “movement moment” – and with the ever-increasing support of public officials, advocacy organizations and citizen activists, it can be done.
The Senate Judiciary Committee yesterday approved the nomination of Maine attorney William Kayatta Jr. to sit on the 1st Circuit Court of Appeals. Only two committee members voted against allowing Kayatta a vote from the full Senate: Utah’s Mike Lee, who is still protesting all Obama nominees, and Alabama Sen. Jeff Sessions, who gave the following reason, according to the Portland Press Herald:
In a statement on his opposition to Kayatta's nomination, Sessions cited Kayatta's role as lead evaluator for the American Bar Association's Standing Committee on the Federal Judiciary during the nomination of U.S. Supreme Court Justice Elena Kagan.
Sessions said Kayatta saw fit to give Kagen the highest rating despite her lack of substantial courtroom and trial experience, as a lawyer or trial judge. Sessions said the rating was "not only unsupported by the record, but, in my opinion, the product of political bias."
Yes, that’s right. Kayatta was involved in the American Bar Association’s nonpartisan rating process, which dared to call the solicitor general and former Harvard Law School dean “well qualified” for the job of Supreme Court Justice.
Sessions, one of the most outspoken opponents of Kagan’s Supreme Court nomination frequently slammed her lack of judicial experience in her confirmation hearings two years ago. He seemed to conveniently forget that the late conservative icon Chief Justice William Rehnquist also came to the High Court without having previously served as a judge – as have over one third of all Justices in U.S. history. The American Bar Association similarly found Rehnquist qualified for the job and called him “one of the best persons available for appointment to the Supreme Court [pdf].
It would be funny if it weren’t so appalling: Sessions’ grudge against Kagan runs so deep that he not only objected to her nomination, he’s objecting to anyone who who’s dared to call her qualified for her job.
People For the American Way launched a major new campaign today highlighting what a Mitt Romney presidency would mean for America’s courts. Romney has signaled that he’s ready to draw the Supreme Court and lower federal courts even farther to the right. And no signal has been clearer than his choice of former Judge Robert Bork to lead his campaign advisory committee on the courts and the Constitution.
In 1987, PFAW led the effort to keep Judge Bork off the Supreme Court. Ultimately, a bipartisan majority of the U.S. Senate recognized his extremism and rejected his nomination.
Last night, PFAW’s Jamie Raskin went on The Last Word with Lawrence O’Donnell to discuss PFAW’s campaign and what a Supreme Court picked by Mitt Romney and Robert Bork would look like:
Watch our full video, Don’t Let Romney Bork America:
To find out more about Judge Bork and what a Romney presidency would mean for America’s courts, visit www.RomneyCourt.com.
PFAW joined members of Congress, state and local officials, advocacy organizations and concerned citizens for a Capitol Hill summit to amplify the call for a constitutional amendment to overturn Citizens United, the 2010 Supreme Court decision that helped usher in unprecedented levels of corporate spending to influence our elections.
The speakers recounted the toll that Citizens United has taken on our democracy, as their colleagues must contend with the outsized influence that wealthy special interests hold over the political system, and how it is absolutely imperative for Congress to have the authority to regulate campaign contributions and require disclosure. While there are many approaches under consideration, it was clear to all that amending the Constitution is a necessary step to restore our democracy. So far, 13 constitutional amendments have been introduced in the current session.
It’s a long road to ratification, but there is a rapidly growing grassroots movement taking hold across the country to get this done. State Representatives and City Councilmen took to the podium to share their constituents’ enthusiasm for a constitutional amendment, and many states and cities across the country have already adopted resolutions calling for such an amendment.
The summit concluded with a call for public officials to sign the Declaration for Democracy, a simple statement of support for amending the Constitution “to protect the integrity of our elections and limit the corrosive influence of money in our democratic process.”
Here is a video and photos of the event.
PFAW’s Marge Baker opens the Summit as members of Congress, local and state officials and activists look on. “We the people means all the people, not just the powerful and privileged.”
PFAW’s Diallo Brooks introduces several local government officials as Representative Keith Ellison (D-MN) signs the Declaration for Democracy.
Maryland State Senator and PFAW Senior Fellow Jamie Raskin describes the Supreme Court’s flawed logic in the Citizens United decision. Quoting Justice White: “The state need not let its own creature [corporations] devour it.”
Rep. Keith Ellison watches as PFAW’s Marge Baker signs the Declaration.
The Declaration for Democracy: “I declare my support for amending the Constitution of the United States to restore the rights of the American people, undermined by Citizens United and related cases, to protect the integrity of our elections and limit the corrosive influence of money in our democratic process.”